Court orders Attorney General to file response on petition to push enforced disappearance cases to ICC

The High Court has given Attorney General Dorcas Oduor 14 days to respond to a petition filed by two civil society organisations seeking to push Kenya to escalate cases of enforced disappearances to the International Criminal Court (ICC).

The petition was brought before the court by Kituo Cha Sheria and Mathare Social Justice Centre, organisations advocating for justice in cases of forced disappearances.

The two civil society organisations have called on the court to declare that enforced disappearances in Kenya constitute crimes against humanity and should be investigated by the ICC.

The petitioners argue that the Kenyan police have shown an inability to prevent or investigate these crimes, thus necessitating international intervention.

In response, High Court judge Chacha Mwita, while declaring the matter urgent, instructed lawyer John Khaminwa, representing the petitioners, to ensure the court documents are promptly served to AG Oduor.

“The respondent (Attorney General) is directed to file a response to the petition within 14 days after service,” the judge ruled.

The court also directed all parties to file their submissions before a mention hearing on February 26.

“This court has the power and authority to compel the respondent to refer what is termed as a crime against humanity to the International Criminal Court as permitted under Article 14 of the Rome Statute,” Khaminwa said.

Khaminwa further stated that Article 7(1) of the Rome Statute classifies enforced disappearance, especially when used as a widespread political tool for suppression, as a crime against humanity.

More abductions, enforced disappearances

In its most recent report, the Kenya National Commission on Human Rights (KNCHR) revealed that 13 additional cases of abductions or enforced disappearances were recorded in the past three months, bringing the total to 82 since June 2024.

The commission also said that seven people were abducted in December, with six still missing, raising the total number of missing persons to 29 since June 2024.

“It appears that the National Police Service is incapable of conducting the investigations, and this court has a duty to protect and defend the people of the republic by referring the matter of enforced disappearances to the International Criminal Court,” Khaminwa said.

Meanwhile, on Monday last week, High Court Judge Bahati Mwamuye ordered IG Kanja to release six youths allegedly abducted by individuals suspected to be police officers, following a petition by the Law Society of Kenya and Busia Senator Okiya Omtatah.

After Kanja failed to comply with the order, Justice Mwamuye instructed Interior Cabinet Secretary Kipchumba Murkomen and Kanja to personally appear before him on January 8.

Social media users

The individuals who have been abducted are reportedly active social media users known for their outspoken criticism of President Ruto and his administration, often sharing strong words and images.

Last week, during an event in Homa Bay County, Ruto promised to put an end to the abductions, which was interpreted by many as an indication that the young men in question would soon be freed.

However, six of them are still yet to be found despite growing tensions and calls for protests.

The President has continuously issued a warning about the improper use of social media platforms.

Ruto and his close allies have also urged parents to “guide young people to avoid fraying the nation’s moral fabric”, remarks that many have seen as targeting dissenting voices online.